CITATION: Dahir v. Soubaneh, 2016 ONSC 8014

COURT FILE NO.: FC-13-2984

DATE: 2016/12/21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Araksan Abdi Soubaneh

Applicant

– and –

Mohamoud Saeed Dahir

Respondent

Lisa Sharp, for the Applicant

Annemarie Roodal, for the Respondent

HEARD: November 23-26, 2015, written submissions by December 16, 2015, Recommenced May 9, 16, 2016 Recommenced October 13, 2016

TRIAL JUDGMENT

blishen j.

Introduction

1The primary caregiver for the parties’ child, Eliyanna-Summiya Mohamoud Saeed, now age five born October 10, 2011 is and has always been her mother, Araksan Soubaneah. Ms. Soubaneah and Eliyanna begun residing in Ottawa with Ms. Soubaneah’s family in June, 2012. Ms. Soubaneh’s mother has played a large role in Eliyanna’s life and did much of the caregiving when Ms. Soubaneh was working in Fort McMurray for some time in 2013 and 2014.

2Eliyanna’s father, Mohamoud Saeed Dahir resides between Nashville, Tennessee and Ottawa, where his wife Miriam, son Amir, born December 25, 2013 and daughter Asha, born July 18, 2016, reside most of the time with Miriam’s family.

3On November 23, 2015, the parties consented to an order that Ms. Soubaneah would be the “primary residential parent” and Mr. Dahir the “alternate residential parent”, with extensive specified access. They further agreed to an order for joint decision making. Child support was also resolved and a final order was made on November 26, 2015.

4The only remaining issue in this protracted proceeding is whether Ms. Soubaneah should be permitted to determine Eliyanna’s permanent residence. She initially planned to move with Eliyanna to Calgary, Alberta but has now obtained employment in the Toronto area where she has been working since August 2016. Eliyanna has remained with her maternal grandmother and other family members in Ottawa. Ms. Soubaneh wishes to have Eliyanna move to reside with her in Toronto. She has abandoned her plans to move to Calgary.

5Ms. Soubaneah argues that as Eliyanna’s primary residential parent, she should be permitted to determine her daughter’s permanent residence. Given the delays in this matter, she continued looking for employment in Ontario and was able to secure a good job in her field in Mississauga, where she now resides. She is settled and stable and wishes her daughter to be with her.

6When Ms. Soubaneh’s plan was to move to Calgary, Mr. Dahir argued strongly such a move was not in Eliyanna’s best interests. In particular, he argued, it would not permit the re-establishment of a meaningful relationship with his daughter. As noted, Mr. Dahir has a part-time residence here with his wife Miriam’s family and is able to drive when necessary to visit from Nashville, Tennessee. He argued this would not be possible if Eliyanna were permanently relocated to Calgary which is significantly further and would necessitate greater transportation costs.

7It is agreed that given his parenting time with Eliyanna, Mr. Dahir has been able to establish a beneficial and meaningful relationship with his daughter. Now that Ms. Soubaneh wishes to move to Toronto, an approximately four hour drive from Ottawa, Mr. Dahir argues to exercise access in Toronto he would have to stay in a hotel. Eliyanna would not be able to visit with her siblings in the family home in Ottawa. The relationship between Eliyanna and her father, brother, sister and stepmother, which are important to her, would be undermined.

Background Facts

8Ms. Soubaneah immigrated to Canada from Ethiopia with her family in 1988 when she was five years old. She is a Canadian citizen.

9Mr. Dahir has US Citizenship. He moved to Ottawa when he was eight years old and met Ms. Soubaneh during High School. They lost touch after graduation.

10The parties reconnected and established a relationship. They dated for a while and eventually were joined in an Islamic wedding ceremony on February 21, 2011 in Toronto. They subsequently moved to Nashville, Tennessee and a civil wedding took place there on August 18, 2011.

11The parties have one child, Eliyanna born on October 10, 2011 in Nashville, Tennessee. Eliyanna has dual US-Canadian Citizenship.

12In late May, 2012 the parties attended an interview in Memphis Tennessee required for Ms. Soubaneh to obtain a permanent US residency status. Ms. Soubaneh received her permanent status and the parties applied for an American passport for Eliyanna.

13Unfortunately, the parties had difficulties during their brief relationship. On June 7, 2012, Ms. Soubaneh left Tennessee and travelled to Ottawa with Eliyanna to visit her family. Ms. Soubaneh and Eliyanna stayed with the family and did not return to Tennessee.

14Mr. Dahir visited Ms. Soubaneh and Eliyanna in Ottawa on a number of occasions between June 2012 and January 2013. He stayed with Ms. Soubaneh’s family; helped them to move to their new home in July, 2012 and was on generally good terms with Ms. Soubaneh’s parents and siblings.

15At the end of January, 2013 the parties permanently separated and Mr. Dahir returned to Nashville. In February, March and April 2013 he travelled to a number of African countries and to Vietnam and Cambodia. He did not see Eliyanna.

16In May 2013 Mr. Dahir spent two weeks in Ottawa visiting Eliyanna before leaving again on a brief trip to South-America. At the end of July, 2013 Mr. Dahir returned to Ottawa for a further two week visit before travelling to Egypt.

17After separation, Mr. Dahir did not pay child support. Ms. Soubaneh took a job cleaning in work camps in Fort-McMurray, Alberta where a number of her family members were working. She arranged to return to Ottawa for a few days every month. Eliyanna remained in Ottawa with Ms. Soubaneh’s mother, Ms. Deil, and other family members when Ms. Soubaneh was away working.

18Although Mr. Dahir hoped to have Eliyanna visit him in Nashville during the summer of 2013, Eliyanna and her maternal grandmother travelled to Alberta for the summer to be with Ms. Soubaneh. Mr. Dahir travelled to Edmonton and visited with Eliyanna for approximately three weeks in July, 2013. He stayed with Ms. Soubaneh’s family during part of the time.

19On August 25, 2013, Mr. Dahir returned to Ottawa and participated in an Islamic engagement ceremony with his current partner, Miriam. Their son Amir was born on December 25, 2013. Miriam’s parents reside in Ottawa.

20On September 26, 2013, a month after the engagement ceremony, Mr. Dahir commenced divorce proceedings in Nashville, Tennessee. This came as a surprise to Ms. Soubaneh, as did his request for sole custody of Eliyanna. In addition, he served Ms. Soubaneh with a motion to immediately return Eliyanna to Nashville. A hearing was held on December 13, 2013 and the Tennessee court made an order for the return of Eliyanna to the jurisdiction of the court within 10 days.

21Given these developments, Ms. Soubaneh commenced an application for divorce and for custody of Eliyanna in the Superior Court of Justice in Ottawa. After hearing an urgent motion, the court assumed jurisdiction and ordered, on a without prejudice basis, the status quo be maintained pending the Tennessee court hearing. The temporary without prejudice order provided Ms. Soubaneh have temporary custody and Eliyanna remain in Ottawa.

22An inter-jurisdictional telephone conference was held on March 24, 2014 between Justice Smith of the Nashville, Tennessee Family Court and Justice Mackinnon of the Ottawa Family Court. It was agreed the Ottawa Court would hold an evidentiary hearing to determine the issue of jurisdiction. The Tennessee court made an order suspending jurisdiction over custody and finding the Canadian court the proper forum to determine whether Ms. Soubaneh had wrongfully removed and / or retained Eliyanna and to determine whether Mr. Dahir had acquiesced to Eliyanna residing in Ottawa with her mother. The Nashville court further ordered the Tennessee proceedings be stayed until the Canadian court made a determination regarding jurisdiction.

23After Mr. Dahir filed his application, Ms. Soubaneh did not permit access to Eliyanna for approximately seven months. Once the parties began settlement discussions in March 2014, Mr. Dahir had a three hour supervised visit. In July, 2014, he had two further supervised visits at the home of Ms. Soubaneh’s sister and brother in law and a further supervised visit in November, 2014.

24On December 5, 2014 Master Roger ordered a one day trial on the issue of jurisdiction to be held February 3, 2015. On a temporary without prejudice basis, Master Roger ordered reasonable access on 48 hours’ notice for Mr. Dahir, on the condition he surrender his passport to his lawyer prior to any visits. A minimum of three day long visits prior to December were ordered. These visits were to be followed by a minimum of two day long visits per week between 9 a.m. and 6 p.m. with exchanges to occur at the applicant’s sister’s home. These visits did not take place. Ms. Soubaneh was concerned that Eliyanna’s passport had not been cancelled and Mr. Dahir could therefore leave the jurisdiction with her. The matter was returned before Master Roger who ordered cancellation of the passport, supervised access up to cancellation, to be followed by the regularly scheduled two days per week.

25On February 3, 2015 the jurisdictional hearing was adjourned and re-scheduled for three days in August, 2015. The matter was also added to the November, 2015 trial list in the event the Superior Court determined it had jurisdiction regarding custody and access.

26The access did not go well. Mr. Dahir brought the matter back before Master Roger on March 11, 2015. Ms. Soubaneh had not taken the necessary steps to cancel Eliyanna’s passport. Master Roger ordered she immediately attend at the US Embassy and deliver the required forms. He re-ordered Mr. Dahir’s unsupervised visits from 9 a.m. until 6 p.m. every Sunday and Monday. Mr. Dahir began having those visits as ordered.

27Despite the agreement the evidentiary hearing regarding jurisdiction would be held in Ottawa, Mr. Dahir returned the matter to the Nashville, Tennessee court for a hearing in May, 2015. Neither Ms. Soubaneh nor her counsel attended. Mr. Dahir was present with counsel and witnesses were called on his behalf. On June 5, 2015, the Nashville court found it had jurisdiction over the issues of custody and access and refused to acknowledge any jurisdiction that had or would be exercised in Canada. Further, the Court found the Canadian courts had violated the human rights of the husband and child and indicated the court would not recognize any orders issued in Canada. Mr. Dahir was awarded full custody and primary residence of Eliyanna. Law enforcement officers were ordered to make all efforts to secure Eliyanna and place her in the “immediate possession” of the father without requiring the mother’s permission. The tenuous trust developing between the parties was badly damaged.

28After Ms. Soubaneh was informed of the Tennessee Court’s decision, she suspended Mr. Dahir’s access. She was concerned Mr. Dahir would now remove Eliyanna on an access visit. Mr. Dahir once again returned the matter before Master Roger. Given concerns about the outstanding Tennessee order, Master Roger made a without prejudice order that Mr. Dahir’s access to Eliyanna be supervised twice a week for three hours per visit. He further ordered surrender of passports, prohibition on applying for passports and surrender of all citizenship documents related to the child.

29The evidentiary hearing regarding jurisdiction was held in August and September, 2015. On October 1, 2015 I determined Ottawa had jurisdiction to hear the issues of custody and access with respect to Eliyanna. I noted both parties had credibility issues but found on a balance of probabilities that, at the very least, there had been acquiescence by Mr. Dahir. Further he did not persuade me the court should decline jurisdiction pursuant to Section 25 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). I did not find it more appropriate for jurisdiction to be exercised in Tennessee. I seized myself with the trial on the issues of custody, access and child support. That trial was set to commence on November 23, 2015.

30By November 23, the parties had reached an agreement and a final order was made on consent regarding the parenting issues and ongoing child support. Ms. Soubaneah is designated the “primary residential parent” and Eliyanna’s primary residence is to be with her. Mr. Dahir is designated the “alternate residential parent” with detailed specified access. Decisions regarding education, religion, non-emergency healthcare are to be made jointly by the parents. Both parties are permitted to attend the child’s school events and both are permitted to obtain all information and records regarding Eliyanna.

31More specifically, Mr. Dahir’s access is outlined under paragraph 7 of the Order as follows:

“The Respondent father shall have access to Eliyanna as set out in the schedule below:

a) In Tennessee for every calendar year, commencing summer 2016, for all of the summer vacation except for 18 days. The Applicant mother shall transport Eliyanna to and from the Respondent father and pay for all the costs associated with the travel for the summer access visit.

b) In Tennessee for every calendar year, commencing December 2016, for up to 10 days during Christmas break the Respondent father shall transport Eliyanna and pay for all the costs associated with the travel for the Christmas access visit.

c) In Tennessee for every calendar year, commencing March 2016, for up to 7 days during March Break with the Respondent father being responsible for Eliyanna’s travel costs. He shall not pay child support for the month of March if Eliyanna visits him in Tennessee.

d) The parties will discuss the dates to be selected for the Summer, Christmas and March Break visits. In the event of a disagreement, the Applicant mother shall select the summer dates and the Respondent father shall select the dates for the Christmas and March Break visits.

e) Once this Court Order has been adopted by the Tennessee Court, the Respondent father may have access to Eliyanna in Canada for four days in the month of February, April, May, June, September, October and November. He shall confirm with the Applicant mother his chosen access dates 10 days in advance of the access. There shall be no make-up access for cancelled visits.

f) For January 2016 only, once this Court has been adopted by the Tennessee Court, the Respondent father may have access to Eliyanna in Canada for four non-consecutive days in the month of January.

g) Commencing in 2017, the Respondent father may have access to Eliyanna in Canada for six days in the month of February, April, May, June, September, October and November. He shall confirm with the Applicant mother his chosen access dates 10 days in advance of the access. The shall be no make-up access for cancelled visits.

h) The Respondent father may have Face Time with Eliyanna every evening between the hours of 5:00 p.m. to 7:00 p.m. at the local time where Eliyanna is resident.

i) Commencing October 2016, in even years, the Respondent father shall have access to the child on her birthday and in odd years, the Applicant mother shall have care of the child for her birthday.

j) With respect to the June access visits, the Respondent father may choose any dates in June to exercise his four or six days’ access as specified above, except for June 6.”

32In addition, the order indicated that any requests to vary the terms of the order or to return to court if a party does not comply with the Order, shall be heard before the Court in Ottawa which was confirmed as the court with proper jurisdiction to determine all issues involving Eliyanna.

33With respect to the orders of the Nashville, Tennessee court and the warrants that had been issued against Ms. Soubaneh, paragraph’s 25 through 29 of the final order read:

“25. Within 60 days of this Order, the Respondent father shall take the necessary steps to have:

a. this court order from Ottawa adopted and modified by the appropriate Court of Davidson County, in Nashville, Tennessee;

b. this court order from Ottawa supersede and/or dissolve the orders of Justice Smith dated December 13, 2013 and June 5, 2015 from the Third Circuit Court of Davidson County, in Nashville, Tennessee.

26. If the Respondent does not provide proof that he has taken the necessary steps to comply with paragraph 25 of this order, then he shall not have access to Eliyanna.

27. The Respondent shall take all necessary steps to seek the withdrawal of the warrants against the Applicant. He shall provide a sworn Affidavit to seek the withdrawal of the warrants against the Applicant. This Affidavit will provide that all family law matters in the Tennessee Court have been resolved on consent of the parties and confirming that the Canadian Court Order from the Court is final and deals with all issues. He shall attach a copy of the Canadian Court Order and confirm that he consents to the withdrawal of all warrants or orders against the Applicant for her arrest issued by the Tennessee Family Court. He shall also confirm that he consents to the dissolution of the warrant against the Applicant.

28. The Respondent shall notify all of the applicable authorities of this Order and the subsequent modified order from the 4th Circuit Court of Davidson County, in Nashville, Tennessee including:

i. the Nashville Metropolitan Police Department;

ii. the FBI;

iii. Interpol;

iv. the United States Embassy in Ottawa;

v. the Centre for Missing and Exploited Children;

vi. the Ottawa Police Services;

vii. the United States Customs and Border Protection; and

viii. the Canada Border Services Agency.

29. If the Respondent does not provide proof that he has taken necessary steps to comply with paragraph 27 and 28 of this order, then he shall not have access to Eliyanna outside of Canada.”

34Having resolved the parenting issues, the only outstanding issue remained Ms. Soubaneh’s request for an order that she be permitted to determine the permanent residence of Eliyanna and to move with Eliyanna, at that time, to Calgary, Alberta. The trial on that issue was held from November 23 to November 26, 2015 inclusive with written submissions.

35Unfortunately, while the judgment was pending, further difficulties arose regarding Mr. Dahir’s ability to deal with the Nashville, Tennessee orders and with respect to access. The time for Mr. Dahir to take steps for the Ottawa Court Order to be adopted in Nashville to supersede the orders previously made, was extended to April 15th, 2016. A protocol for Face Time Access by Mr. Dahir was also agreed to in front of Justice Roger.

36After receiving a letter from Mr. Dahir’s counsel regarding difficulties with access which it was argued could affect the decision on the issue of Eliyanna’s permanent residence, I agreed to reopen the trial. Further evidence was heard on May 9 and May 16, 2016.

37Once again, prior to rendering a decision on the mobility issue, counsel contacted the court in July, 2016 and requested the trial be reconvened a second time. It was agreed there was fresh evidence which could have an impact on the decision. On consent, October 13, 2016 was set for the trial continuation. In addition to further evidence regarding access, the Court was informed Ms. Soubaneh had obtained employment in the Toronto area and wished to have Eliyanna move there with her. This was a significant change in circumstances.

38There have been further difficulties with Mr. Dahir’s access. The order permitted him supervised access at the Supervised Access Centre every Saturday until he obtained the modified order of the Tennessee Court. Mr. Dahir was able to obtain that order by April 15, 2016. Prior to obtaining the modified order, Ms. Soubaneh, agreed to look after her sister’s children on the weekends for extra money. Therefore, she was unable to drive Eliyanna to the Supervised Access Centre. She proposed alternatives but Mr. Dahir wished to continue to follow the court order. Given the impasse Ms. Soubaneh did not bring Eliyanna to the Supervised Access Centre for a visit. In addition, Ms. Soubaneh had questions and concerns about the fact that all of the terms of the Ottawa Court Order were not incorporated into the proposed order by the Tennessee Court.

39On May 13, 2016 the parenting order was signed in Tennessee. Mr. Dahir then notified all the authorities as required by the court orders and by June 23rd all the warrants were cancelled.

40Ms. Soubaneh remains concerned that some of the terms of the Tennessee Order are different from the Ottawa Order. She takes the position that unless it is made clear in the Tennessee Court that the forum conviens will be the Ontario Superior Court of Justice, she will be reluctant to permit Mr. Dahir access to Eliyanna in Tennessee. Ms. Soubaneh believes that without a clear order to that effect, Mr. Dahir could do as he did before and, once Eliyanna is with him in Tennessee, apply to the court there for a custody order on an urgent basis.

41In July and August, Mr. Dhair had parenting time with Eliyanna but in Ottawa not in Tennessee. On one occasion, Ms. Soubaneh called the police as she was concerned Mr. Dahir was taking Eliyanna to Tennessee. She clearly remains fearful and does not trust Mr. Dhair to apply to Canadian, not Tennessee, Courts to deal with any future parenting issues.

42Given the delays in this matter Ms. Soubaneh continued looking for employment in Ottawa and Toronto. On August 5th she was offered a position in her field as a supply chain analyst with Glaxco Smith in Mississauga. She signed the contract on August 11, 2016 for eight months with a $70,000 annual salary. Ms. Soubaneh is confident her contract will be renewed or there will be other opportunities with this company. Ms. Soubaneh began work on August 29th. She and a cousin are now subletting her aunt’s three bedroom furnished home close to her workplace. Ms. Soubaneh has identified an appropriate school for Eliyanna and registered her for day care.

43On September 25, 2016 Ms. Soubaneh notified Mr. Dahir of her plans and her employment. Ms. Dahir strongly objected to Eliyanna’s move. Eliyanna has remained with her maternal grandmother in Ottawa where she continues to attend senior kindergarten, while her mother resides in Toronto. Ms. Soubaneh did come back for some weekends in September to visit Eliyanna but her daughter has not visited her in Toronto. Mr. Dahir continues to be entitled to four days per month of overnight access which he has exercised in Ottawa.

44Over the past year Mr. Dahir has been able to establish a beneficial and meaningful relationship with Eliyanna. She enjoys the time with her father, with her brother Amir, and more recently her new sister Asha.

45Mr. Dahir’s plans are vague and unclear. He argues he has not been able to work or go back to school in Nashville given his access with Eliyanna has been exercised in Ottawa. He still has a residence in Nashville but notably his wife Miriam and two children reside most of the time with her parents in Ottawa. Mr. Dahir’s source of income is also unclear. He is paying child support and is able to pay for the gas to drive to and from Nashville for his visits.

46As previously noted, the sole issue remaining before the court is whether Ms. Soubaneh should be permitted to determine Eliyanna’s permanent residence. At this time, her plan is to move Eliyanna’s permanent residence to reside with her in Toronto, Ontario.

Legal Framework and Analysis

47The leading case on relocation or mobility is the Supreme Court of Canada’s decision in Gordon v. Goertz 1996 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.). The court outlines the guiding principles for courts to consider in mobility cases. That case was a request to change a previous custody order, whereas Ms. Soubaneh’s application was an originating application for custody and child support.

48In Bjornson v. Creighton 2002 45125 (ON CA), [2002] O.J. No. 4364, the Ontario Court of Appeal indicated that on an original application the trial judge should first decide the issue of custody and then factor that into the decision on mobility. At paragraph 18 the Court states:

“The Gordon proceeding dealt with mobility within the context of an application to vary an order. In the instant case, the issue of mobility was dealt with at the original hearing following the two interlocutory orders made on consent. Despite these differences, the guiding principles set out in Gordon, which remain applicable in the case before us, are:

1. The judge must embark on a fresh inquiry into what is in the best interest of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

2. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect and the most serious consideration.

3. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

4. The focus is on the best interests of the child, not the interest and rights of the parents.

5. More particularly, the judge should consider, inter alia:

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(c) the desirability of maximizing contact between the child and both parents;

(d) the views of the child;

(e) the custodial parent's reasons for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;

(f) the disruption to the child of a change in custody; and

(g) the disruption to the child consequent on removal from family, schools and the community he has come to know.”

49In Terris v. Marcoux (Terris), 2003 2040 (ON SC) Justice Mackinnon referred to Bjornson v. Creighton 2002 45125 (ON CA), [2002] O.J. No. 4364 as follows:

In Bjornson v. Creighton, supra, the Court of Appeal ruled that the trial judge had erred in apparently deciding the mobility issue first and then deciding which parent should be the custodial parent. In so ruling, the Court of Appeal noted:

[para 39] I noted in para. 19 that in delivering judgment the trial judge dealt with mobility before dealing with custody and that appeared to me to be the wrong sequence. Had he decided the question of custody first, he could then have properly factored that finding into his decision of the mobility question.

[para 40] Had he followed that course, he would then have been required to deal with the position and views of Bjornson as the custodial parent as directed in Gordon. While the majority of the Supreme Court of Canada in Gordon rejected the idea of a legal presumption in favour of the custodial parent's views, it nonetheless stated that the views of the custodial parent are "entitled to great respect and the most serious consideration". At para. 48, McLachlin J. said,

While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent's parenting ability. (Emphasis added)

At paragraph 36, she wrote,

The judge will normally place great weight on the views of the custodial parent, who may be expected to have the most intimate and perceptive knowledge of what is in the child's interest. The judge's ultimate task, however, is to determine where, in light of the material change [not the instant situation], the best interests of the child lie. (Emphasis added)

[para 45] With the greatest of respect to the learned trial judge, it does not appear to me that he made the depth of inquiry required in the circumstances or that in doing so he gave the evidence of the mother the "great respect" or "most serious consideration" to which it was entitled.

50In this case, the parents have consented to an order that Ms. Soubaneh be the “primary residential parent” and Eliyanna’s primary residence be with her. Decision making is to be shared. Mr. Dahir has extensive, specified access. The only remaining issue is whether or not Ms. Soubaneh will be permitted to determine Eliyanna’s permanent residence and relocate the child to reside with her in Toronto.

51Given that all other issues have been settled the relocation issue should be addressed in accordance with the principles in Gordon v. Goertz, including the Court’s direction to accord “great respect” and “most serious consideration” to the views of the custodial parent but always to be governed by a thorough consideration of the best interests of the particular child in all the circumstances, old as well as new. See paragraph 15 Gordon v. Goertz.

52In considering all the circumstances of this case, Ms. Soubaneh’s views and preferences and Eliyanna’s best interests I note the following:

1. Ms. Soubaneh has been the primary caregiver for Eliyanna since she was born. The parties physically separated when Eliyanna was eight months old and Ms. Soubaneh brought her to Ottawa.

2. Mr. Dahir travelled from Nashville to visit with Eliyanna in both Ottawa and Edmonton, for a few weeks at a time until his engagement ceremony to his wife Miriam in late August, 2013. In September 2013, he brought an application in Nashville, Tennessee for sole custody of Eliyanna and for her immediate return to the jurisdiction.

3. It was ultimately determined the Ontario Superior Court of Justice in Ottawa had jurisdiction and Mr. Dahir had, at the very least, acquiesced to Eliyanna’s change in residence.

4. It was difficult for Mr. Dahir to arrange consistent parenting time with Eliyanna given Ms. Soubenah’s concerns regarding his application in Nashville and the orders of the Nashville Court. Master, now Justice, Roger case managed this matter throughout and numerous orders were made for access. At times Ms. Soubaneh did not follow those orders.

5. Nevertheless, when the trial commenced on November 23, 2015, the parties reached an agreement and settled the parenting and child support issues by final orders. They agreed it was in Eliyanna’s best interests that Ms. Soubaneh be “the primary residential parent” and Eliyanna’s primary residence be with her. All significant decisions were to be made jointly. As the “alternate residential parent, Mr. Dahir is entitled to exercise summer, Christmas, and March Break access in Tennessee and beginning in 2017, six days in each additional month “in Canada”. It was specifically agreed that the order for access be “in Canada” not Ottawa, not Calgary, and not Toronto. When the final order was made on consent, Mr. Dahir was aware of Ms. Soubaneh’s intention to move where she could obtain employment, at that time Calgary, where she had many relatives.

6. Holiday access in Tennessee has not taken place given Ms. Soubaneh’s views and concerns that the Tennessee order is not clear that the Ontario Superior Court of Justice will have jurisdiction over any further parenting issues. Mr. Dahir did have summer access in Ottawa and is now entitled to six days a month access “in Canada.” His access with Eliyanna has taken place in Ottawa with his wife Miriam and two children Amir and Asha in Miriam’s family home. Mr. Dahir indicates Eliyanna enjoys the visits and is particularly close to her brother Amir. Despite the difficulties with arranging consistent access, Mr. Dahir has developed a meaningful and beneficial relationship with Eliyanna and Eliyanna has also developed a close relationship with her father, step-mother and siblings.

7. Mr. Dahir does not reside permanently in Ottawa but indicates he maintains a residence in Nashville, Tennessee. He wishes to continue to reside in that city hopefully to work and/or go back to school, although he has no concrete plans in this regard. In addition, the source of his income is vague and unclear. His wife and children reside most of the time in Ottawa.

8. Since Eliyanna was eight months old, she has resided in Ottawa with her mother and extended family. Her maternal grandmother, Ms. Deil, has been Eliyanna’s primary caregiver when Ms. Soubaneh was working in Alberta and again now that Ms. Soubaneh has secured employment in Toronto. Eliyanna is very close to her maternal grandmother. However, Ms. Deil testified she intends to relocate to Calgary where her husband and a number of her children reside. At present, she remains in Ottawa with Eliyanna. She has put her own plans on hold to assist her daughter and granddaughter.

9. While waiting for the matter to be resolved, Ms. Soubaneh completed her Masters’ degree and continued to search for employment in her field. Although, her preference was to move to Calgary, where her father and most of siblings reside, she has now found employment in her field in Toronto. Although she is on contract she indicates there are many opportunities available with this company. She has a good income, a home she shares with a cousin and prospects for the future. Ms. Soubaneh is finally independent, financially secure and settled. She wants her daughter to be with her.

10. Although Eliyanna has a community of friends in Ottawa, she is only five years old and in kindergarten. A move for her now would take place at the end of the school term. There is a school near Ms. Soubaneh’s residence and she has located and registered Eliyanna for daycare.

11. There is nothing preventing Mr. Dahir from exercising his court ordered access in Toronto. He is not working at present and the driving time from Nashville to Toronto is less than to Ottawa. The parties could agree on some visits in Ottawa with Miriam and the other children and some in Toronto. There is no reason, given Mr. Dahir’s current circumstances, for the family relationship Eliyanna has with her father, stepmother and siblings to be undermined or weakened if Eliyanna moved with her mother to Toronto. Those relationships, given the extensive access schedule, could and should be maintained and strengthened.

Order

53Having considered all the circumstances and factors above, and having weighed the benefits of the move with the detriments, I find it in Eliyanna’s best interests to be permitted to move to Toronto with her mother. Therefore, I make the following order:

1. The Applicant mother, Araksan Soubaneh shall be permitted to determine the permanent residence of the child Eliyanna-Sumaiya Mohamoud Saeed, born October 10, 2011, as long as that residence is in Ottawa or Toronto, or elsewhere in Ontario within 200 kilometres of Ottawa or Toronto

2. At this time, the Applicant shall be permitted to move the child Eliyanna’s permanent residence to Toronto, Ontario.

3. The Applicant shall provide the Respondent with the date of Eliyanna’s move to Toronto within 7 days of the release of this judgment.

4. The Applicant shall provide the Respondent with her current Toronto (Mississauga) address and contact information including telephone number, and email address, within 7 days of the release of this judgment.

5. The Applicant shall not be permitted to change the child’s permanent residence outside of Ontario nor to a location further away than 200 kilometres from Ottawa or Toronto, Ontario, without the prior written consent of the Respondent or a Court Order obtained in advance.

6. The Applicant shall provide to the Respondent 30 days’ notice of any change or proposed change, in Eliyanna’s permanent residence.

7. The Respondent father shall be permitted to exercise access with Eliyanna pursuant to the final order dated November 23, 2015. This includes the access in Tennessee. The November 23, 2015 order of the Superior Court of Justice and the Order of the Nashville Court incorporating the parenting plan are clear and I find the Ontario Superior Court of Justice is the Court with jurisdiction to deal with any future parenting issues. In addition, for the purposes of the Hague Convention, Eliyanna is habitually resident in Ontario. Ms. S. is to comply with the access terms of the November 23, 2015 order or she could face serious sanctions.

Costs

54Given the unreasonableness of both parties’ behaviour, concerns regarding the credibility of both parties, the protracted nature of this case, the limited means of both parties and the divided success, there will be no order as to costs.